The Ninth Circuit has determined that Matter of A-B-, which purported to exclude domestic violence and gang-based claims from asylum, did not actually create a categorical bar to such claims. Instead, these claims, like all asylum claims, but be evaluated on a case-by-case basis.
The court further observed that A-B- “merely reiterated the well-established principle that a particular social group must exist independently of the harm asserted, and that the BIA must consider whether a petitioner’s social group is cognizable if it is defined without reference to the fact of persecution.” “If a group is otherwise cognizable, Matter of A-B- does not demand that it be devoid of any reference to an applicant’s claimed persecution. To the contrary, Matter of A-B- reiterated the longstanding rule that persecution may be relevant to a group’s social distinction.” “The idea that the inclusion of persecution is a sort of poison pill that dooms any group does not withstand scrutiny. “ “BIA precedent confirms that a group that exists independent of persecution is simply a group that shares an immutable characteristic other than the persecution it suffers—i.e., a group that shares a ‘narrowing characteristic.’”
“The BIA ruled that Diaz-Reynoso’s proposed social group was not cognizable because it assumed her inability to leave her relationship was attributable to domestic violence, and because it understood Matter of A-B- to say that the mention of domestic violence disqualifies a particular social group.” “There are at least two problems with the BIA’s reasoning in Diaz-Reynoso’s appeal. First, as explained, the BIA misunderstood Matter of A-B-’s holding. Second, it is not clear that the reason Diaz-Reynoso was ‘unable to leave’ her relationship was limited to domestic violence. Rather, the BIA assumed that domestic violence was the only reason Diaz-Reynoso was unable to leave her relationship.” “The persecution Diaz-Reynoso fears is undoubtedly the abuse perpetrated by her husband, but before the immigration judge, she advanced evidence of economic, societal, and cultural factors that also may have prevented her from leaving her relationship. These included her financial dependence on her husband, limited education, rural location, and an ingrained Mayan cultural view that a relationship does not end until the man so agrees.”
The full text of Diaz-Reynoso v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/07/18-72833.pdf